Time For A Supine Congress To Reassert Itself

Congress is one of the least respected institutions in the United States. A Rasmussen Reports phone survey published last month “finds that just 13% of Likely U.S. Voters think Congress is doing a good or excellent job overall, while 56% rate the current Congress poorly.” 13% is lousy, but it is almost double the 7% rating of a year ago when the memory of the Senate’s dysfunction under former Majority Leader Harry Reid was fresher.

Congress’ reputation suffers for a multiplicity of reasons, including hypocrisy, perceptions of corruption (e.g., enriching themselves at public expense or selling themselves to the highest bidder), the pervasive nastiness of venomous rhetoric, etc.; but from my perspective, Congress’ biggest problem is disloyalty to the Constitution stemming from political cowardice. For decades, Congress’ members have abdicated their constitutional prerogatives. Rather than honoring their oath to uphold the Constitution and its system of checks and balance, a majority of members have chosen the path of least resistance by delegating or ceding to others the often-unpopular decisions that the people’s representatives are supposed to make.

Congress has ceded power to the Federal Reserve and sundry multilateral institutions like the IMF, UN, et al., as well as to the other two branches of the federal government—the executive and judicial. I’ve taken on some of the multilaterals elsewhere. Today, I’ll suggest several steps Congress could take to reclaim some of its rightful power from the other two branches of government in Washington, and thereby possibly earn more respect. Admittedly, the steps I will propose won’t come to pass as long as a “progressive” is in the White House.

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The executive branch has been steadily usurping congressional prerogatives for decades. The process has accelerated markedly during the Obama presidency–think EPA, BLM, NLRB, FCC, etc. Here are four policies designed to curb executive-branch power that congressional Republicans should vote into law in early 2017 if they are fortunate enough to retain the House and Senate and win the White House next year:

1) John Stossel’s important special “Green Tyranny” showed how the EPA has been cramming loathsome propaganda down the throats of our children in public schools. It’s worrisome enough when the Department of Education seeks to centralize educational standards in Washington, but for other agencies that weren’t even chartered for educational purposes to develop and impose our public schools’ curricular content is unacceptable. Congress should shut down the Office for Environmental Education that Congress itself unwisely created in 1990 and defund all indoctrination programs within the executive branch.

2) Earlier this summer, Investor’s Business Daily reported that the Consumer Financial Protection Bureau and the Department of Justice both have collected tens of millions of dollars in fines from private corporations and then disbursed the funds collected to various “activist” organizations. While a worthy ultimate goal would be the abolition of the unaccountable, undemocratic CFPB, the least Congress should do is pass a law that any funds collected as fines by the executive branch shall be deposited with the U.S. Treasury so that Congress (which has the constitutional power of the purse) may determine the disposition of those funds. (For the record, Congress shouldn’t be in the wealth redistribution business either; but at least members of Congress can be voted out of office, whereas officials of DOJ, CFPB, etc., are insulated from the electorate.)

3) Much mischief has come out of the incestuous relationship that Milton Friedman dubbed “the iron triangle.” This is the loop whereby special interest groups lobby Congress for more spending, a pliable, complicit Congress then increases appropriations to particular agencies, and then the agencies grant that money to the special interest groups that lobbied for the spending increases so that they can keep lobbying for another round of spending increases. The taxpayer is the perennial victim of “the iron triangle.” Congress could end this scam by forbidding federal agencies from giving grants to special interest groups (whether profit-seeking corporations or not-for-profit organizations) and cutting from agencies’ budgets the full amount they currently spend on such grants.

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4) Here’s the big one: Of the flood of rules coming out of Washington that Americans must obey, fewer than 5% are laws passed by our elected representatives in Congress; the other 95% are promulgated by unelected, undemocratically unaccountable bureaucrats in the executive branch. Again, this is Congress’s fault. Decades ago, Congress adopted the policy of allowing executive branch agencies to promulgate regulations that take effect automatically unless Congress specifically votes against them within 90 days. Members of Congress rarely have time to read every word in the laws they pass (remember Obamacare!), much less every regulation that comes down the pike–and so lots of lousy regulations slide through. Congress needs to reverse the process: Instead of a rule becoming the law of the land unless Congress says it isn’t, nothing should be the law of our land unless Congress says it is. One of the fundamental constitutional principles is that Congress is the legislative—the law-writing—branch of government. It’s time to cancel the executive agencies’ virtual blank check to impose rules upon us.

Besides Congress, the Supreme Court also recently intruded on Congress’ legislative prerogative when Chief Justice Roberts stated in his opinion in King v. Burwell that the phrase “state exchange” in the Affordable Care Act really meant “a state or federal exchange.” House Speaker John Boehner won’t push back and risk media outrage, but a bolder congressional leader would call for a vote to amend the ACA by inserting language stipulating a federal exchange. Then, if Congress explicitly refused to adopt such language, the Supreme Court would be in the position of insisting that Congress adopt a provision that it explicitly voted not to adopt. With Obama taking SCOTUS’ side, the Court’s reinterpretation of the law would stand; but then the Speaker could rebuke the Court by presenting a motion to censure Mr. Roberts.